Citation Nr: 1331468 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-35 423 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2012 rating decision in which the RO denied service connection for the Veteran's bilateral hearing loss. The Veteran filed a notice of disagreement in January 2012. The RO issued a statement of the case in November 2012. The Veteran filed a substantive appeal (via a Form 9, Appeal to Board of Veterans' Appeals) in December 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. 38 C.F.R. § 19.9 (2012). The Veteran contends that he currently has bilateral hearing loss that was incurred during his military service, and that it is a direct result of loud noise exposure as a light weapons infantryman. A VA examination and opinion were provided for the Veteran's claim, but the inadequacies evident in the examination and opinion require a remand. The Veteran's service treatment records include the report of an enlistment audiometric examination in March 1966 with a Rudmose audiometer, and the report of a separation audiometric examination in December 1967. Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, and to determine whether significant threshold shifts in hearing were incurred between enlistment and separation, service department audiometric test results through October 31, 1967 under the ASA standards must be converted to ISO-ANSI standards. The VA examiner's failure to indicate whether the audiometric test results were converted, failure to indicate whether there were threshold shifts between enlistment and separation after any conversions, and failure to discuss the implication of any threshold shifts on the Veteran's bilateral hearing loss, makes the VA examiner's rationale potentially inaccurate, and thus inadequate. As such, remand is required. Further, the portion of the VA examiner's rationale for the Veteran's ultimately service-connected tinnitus noted that the Veteran experienced a "significant threshold shift during service," so his tinnitus was at least as likely as not a product of his military noise exposure. However, the VA examiner did not specifically identify the threshold shift referred to in the rationale, or discuss the impact of this significant threshold shift on the Veteran's bilateral hearing loss. In addition, the VA examiner stated that the Veteran had hearing thresholds within normal limits at the time of separation from service, yet failed to discuss the impact of the significant threshold shift during service on the Veteran's apparently normal hearing at separation. Although an examiner need not comment on all evidence of record, he must address evidence that is at odds with the underlying premise for his conclusion. Finally, the VA examiner based his rationale for the ultimate opinion on a statement from the American College of Occupational Medicine Noise and Hearing Conservation Committee (ACOMNHCC) that reportedly states, "a noise induced hearing loss will not progress once noise exposure is stopped." The VA examiner cited this ACOMNHCC statement, but failed to state how the statement or its underlying rationale apply to this particular Veteran's claims of service connection for bilateral hearing loss in light of his work as a light weapons infantryman while in active military service, so the VA opinion is deficient in this respect. In addition, the RO's statement of the case did not address the impact of the National Academies of Science Institute of Medicine 2005 report "Noise and Military Service" and its rationale and conclusions concerning noise exposure in service and hearing loss as raised by the Veteran in his January 2012 notice of disagreement. Thus, the matter must be remanded for additional development.. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and the record is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo examination, by an appropriate physician or audiologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. a. The examiner must interview the Veteran, and record in detail the history of his bilateral hearing loss. The examiner must obtain a detailed history concerning the onset of symptoms, frequency of occurrence, and duration of hearing loss at all time periods beginning from the alleged onset to the present. The examiner must consider the Veteran's history in all opinions rendered pursuant to the directives listed below. b. In order to facilitate data comparison, the examiner must convert the service department audiometric test results included in the record that were generated through October 31, 1967 from American Standards Association (ASA) measurements to the International Standards Organization (ISO)-American National Standards Institute (ANSI) measurements. If conversion is not necessary for a set of service department audiometric test results, the examiner must indicate why the conversion is unnecessary. c. After converting the service department audiometric test results according to Directive "c," the examiner must identify and list all Hertz levels for each ear where there were pure tone threshold shifts between the enlistment examination in March 1966 and the separation examination in December 1967. d. After completing the above-noted directives, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's current bilateral hearing loss had its onset in or is otherwise medically related to service, to particularly include noise exposure associated with the Veteran's duties as a light weapons infantryman. e. In providing the requested opinion, the examiner should consider and discuss all medical, objective, and lay evidence, to include the Veteran's assertion regarding the onset, continuity, and progression of his hearing loss. Complete rationale for all conclusions reached must be provided. The examiner should discuss the significance, if any, of any pure tone threshold shifts between the enlistment examination in March 1966 and the separation examination in December 1967 as it relates to the etiology of the Veteran's bilateral hearing loss. The examiner should also consider and discuss the American College of Occupational Medicine Noise and Hearing Conservation Committee statements relied upon in the August 2011 opinion, which reportedly states that a noise induced hearing loss will not progress once noise exposure is stopped. The examiner should address the rationale presented in the American College of Occupational Medicine Noise and Hearing Conservation Committee, and explain why the conclusion that noise-induced hearing loss will not progress once noise exposure is stopped is or is not applicable to this particular Veteran's claim for bilateral hearing loss. The examiner must also consider and discuss the National Academies of Science Institute of Medicine 2005 report "Noise and Military Service," concerning noise exposure in service and hearing loss, and explain why the conclusions and rationale contained therein are or are not applicable to this particular Veteran's claim for bilateral hearing loss. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6.. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case and afford them the opportunity to respond before the claims file is returned to the Board. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).